One of the comments to Matt Asay’s post about me over the winter asked what I think was a pretty good question, and one that has been asked in a couple variations this summer:

…I am usually saddened to see that law becomes a necessarily evil in science (programming in this case). Why can’t we just be?

For better or for worse, social producers (not just software, but wikipedia, etc.) are becoming so successful that we often have to interface with the real world. We’ve got two options. First, we can either stay small and under the radar, allowing us to keep operating on a handshake basis. This will work for some products and some producers, but I think many of us want to have a broader impact than that. For those of us who do think that social production is going to have a serious and broad impact on the world, we can use the tools the rest of the world has developed to relate to that real world- laws and legal experts, aka lawyers. I’m pretty sure there is no third option to ‘be big but somehow still avoid lawyers.’ (Feel free to convince me otherwise; I’ll save at least $90K in school bills if you do. :) At best, we might be able to avoid some of the regulation which has affected every other pervasive industry, but even without regulation by government, when you’re big you have to relate to other private parties- corporations, less trusting individuals, etc. The bigger you get, the more those relationships are mediated by lawyers, in order to make sure that all sides can eventually trust each other once the lawyers are gone. The need to defend and define our success, in part by using the law and legal experts, is a virtually inevitable byproduct of our success- the rest of the world is not just going to let us be if we have the impact we hope we can have.

The types of issues lawyers can and will help social production navigate aren’t just going to be defensive issues, thankfully. If more of our relationships are going to lean away from the purely economic/industrial and begin to include more aspects of the social/cooperative, we’re going to need creative new ways to structure and define those relationships. The GPL is the canonical example of this, of course, but there are other examples too, like the Red Hat sales model. We got lucky in many senses with GPL- while originally intended for a cathedral-like model of production, it happened to provide the reciprocity which turned out to be critical for success in the bazaar. We aren’t likely to be so lucky again- we may never again have the time to allow such relationships to grow slowly and organically. Red Hat’s current sales model couldn’t evolve; it had to be sculpted with the aid of lawyers from day one. Again, then, if we want to have such relationships, we’re going to need to choose the ways we structure them more deliberately and proactively- and lawyers will likely be involved, whether we feel comfortable with that or not.

This isn’t necessarily to say that social producers should give up and let the lawyers have their way with us; they should be viewed with some suspicion, and we should demand that the same principles which tend to govern social production now - values like openness, transparency, simplicity, robustness - should continue to govern social production in the future, even after the lawyers get involved. (Mike Dillon, Sun GC, has a great blog post on the clarity/simplicity thing; and another on aligning provision of services with the needs of customers instead of the needs of providers; great social production lawyers will take both of those to heart and great social producers will demand it of their lawyers.) But denying that law (and with it the lawyers) is coming doesn’t serve anyone well.

So… perhaps unfortunately, our own needs and the needs of the outside world are going to push social producers into the arms of lawyers, whether we like it or not. Fortunately, more lawyers are going to get it as social production becomes more pervasive; the team here at Red Hat certainly seems to, and hopefully I’ll add myself to the pool of such lawyers in another couple years.